130th Ohio General Assembly
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S. B. No. 255As Introduced
As Introduced

124th General Assembly
Regular Session
2001-2002
S. B. No. 255


SENATOR Blessing



A BILL
To re-enact sections 4939.01, 4939.02, and 4939.03, to amend sections 4939.01, 4939.02, and 4939.03 as re-enacted by this act, and to repeal section 4939.04 of the Revised Code, to re-enact certain provisions of the utility and cable public right-of-way law as enacted by Am. Sub. H.B. 283 of the 123rd General Assembly; to change the definitional section of that law, as re-enacted by this act, to broaden the application of the law to gas and petroleum or other hazardous liquid pipelines; to state, as an express prohibition, a provision of law relating to additional consent for an existing use of a public way; to provide that only those customers of a utility service provider that receive service from the provider within a political subdivision may be charged for specified costs levied by the subdivision on the provider for the use of public ways; to remove an exemption in the law concerning any legal requirements of political subdivisions, in effect prior to January 1, 1999, for certain compensation for the right or privilege of use of a public way; and to declare an emergency.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1.  That sections 4939.01, 4939.02, and 4939.03 of the Revised Code be re-enacted to read as follows:
Sec. 4939.01.  As used in this chapter:
(A) "Utility service provider" means a natural gas company, local exchange telephone company, interexchange telecommunications company, electric company, or any other person that occupies a public way to deliver natural gas, electric, or telecommunications services.
(B) "Cable operator" has the same meaning as in section 2 of the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C.A. 522, as amended.
(C) "Public way" means any public street, road, highway, public easement, or public waterway, and includes the entire width of any right of way associated with any public way.
Sec. 4939.02.  (A) A utility service provider or cable operator has the right to construct, repair, position, maintain, or operate lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities along, across, over, upon, and under any public way in the state, subject to the applicable provisions of this chapter and any other chapter of the Revised Code. The lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities shall be constructed and positioned in such a way that safety is not unreasonably compromised in the use of the public way.
(B) The state, or any political subdivision of the state, shall not discriminate among utility service providers or cable operators, or grant a preference to any utility service provider or cable operator, in the issuance of permits or the passage of laws, ordinances, or resolutions for the use of public ways, or create or erect any requirements for entry upon and use of the public ways that are not necessary to protect the health, safety, and welfare of the public.
(C) Nothing in this section shall be construed to authorize any utility service provider or cable operator to construct lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities along, across, upon, and under any public way owned by a political subdivision without first obtaining the consent of the political subdivision for such construction, if consent is required by the political subdivision.
(D) This section does not require any utility service provider or cable operator that, as of September 29, 1999, occupies, or has obtained the consent of a political subdivision to occupy, a public way in the political subdivision, to apply for additional or continued consent of the political subdivision as to any existing lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities that are in place on the effective date of this section. The political subdivision shall not discriminate against any other utility service provider or cable operator seeking to use the same public way.
(E) The construction, repair, placement, maintenance, or operation of lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities by a utility service provider or a cable operator is declared to be a matter of statewide concern.
(F) Consent for the use of a public way by a political subdivision shall be based on the lawful exercise of the police power of the political subdivision and shall not be unreasonably withheld, nor shall any preference or disadvantage be created through the granting or withholding of consent. A political subdivision shall grant its consent under this division within thirty days after the date a utility service provider or cable operator applies for consent for the use of a public way.
Sec. 4939.03.  (A) A political subdivision of the state shall not levy a tax, fee, or charge or require any nonmonetary compensation or free service for the right or privilege of using or occupying a public way for purposes of delivering natural gas, electric, telecommunications, or cable television service.
(B) A political subdivision may charge a utility service provider or a cable operator a construction permit fee to the extent that such fee applies to all persons seeking a construction permit. The fee shall be limited to the recovery of the direct incremental costs incurred by the political subdivision in inspecting and reviewing any plans and specifications and in granting the associated permit.
(C) A utility service provider or cable operator that places lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities in a public way shall restore the public way to its former state of usefulness. To the extent a utility service provider or cable operator does not comply with this division, a political subdivision may charge the utility service provider or cable operator the necessary costs to restore the public way to its former state of usefulness.
(D) Nothing in this chapter shall be construed to prohibit a political subdivision from doing either of the following:
(1) Charging a cable operator a franchise fee in accordance with section 2 of the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C.A. 542, as amended;
(2) Allowing a credit, offset, or deduction against the payment of a construction permit fee for any franchise fee a cable operator pays to the political subdivision.
(E) A utility service provider, including a reseller, that does not own, operate, maintain, install, or construct any facility in a public way and that does not otherwise disturb the public way shall not be required to pay a fee or to obtain a construction permit to access the public way.
Section 2. That sections 4939.01, 4939.02, and 4939.03 of the Revised Code, as re-enacted by this act, be amended to read as follows:
Sec. 4939.01.  As used in this chapter:
(A) "Utility service provider" means a natural gas company, pipeline company, local exchange telephone company, interexchange telecommunications company, electric company, or any other person that occupies a public way to deliver natural gas, electric, or telecommunications services.
(B) "Cable operator" has the same meaning as in section 2 of the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C.A. 522, as amended.
(C) "Public way" means any public street, road, highway, public easement, or public waterway, and includes the entire width of any right of way associated with any public way.
(D) "Pipeline company" means the owner of a pipeline facility regulated under the "Accountable Pipeline Safety and Partnership Act of 1996," 110 Stat. 3793, 3805, 49 U.S.C.A. 60101, et seq.
Sec. 4939.02.  (A) A utility service provider or cable operator has the right to construct, repair, position, maintain, or operate lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities along, across, over, upon, and under any public way in the state, subject to the applicable provisions of this chapter and any other chapter of the Revised Code. The lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities shall be constructed and positioned in such a way that safety is not unreasonably compromised in the use of the public way.
(B) The state, or any political subdivision of the state, shall not discriminate among utility service providers or cable operators, or grant a preference to any utility service provider or cable operator, in the issuance of permits or the passage of laws, ordinances, or resolutions for the use of public ways, or create or erect any requirements for entry upon and use of the public ways that are not necessary to protect the health, safety, and welfare of the public.
(C) Nothing in this section shall be construed to authorize any utility service provider or cable operator to construct lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities along, across, upon, and under any public way owned by a political subdivision without first obtaining the consent of the political subdivision for such construction, if consent is required by the political subdivision.
(D) This section does not require any A utility service provider or cable operator that, as of the effective date of this section September 29, 1999, occupies, or has obtained the consent of a political subdivision to occupy, a public way in the political subdivision, shall not be required to apply for additional or continued consent of the political subdivision as to any existing lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities that are in place on the effective date of this section September 29, 1999. The political subdivision shall not discriminate against any other utility service provider or cable operator seeking to use the same public way.
(E) The construction, repair, placement, maintenance, or operation of lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities by a utility service provider or a cable operator is declared to be a matter of statewide concern.
(F) Consent for the use of a public way by a political subdivision shall be based on the lawful exercise of the police power of the political subdivision and shall not be unreasonably withheld, nor shall any preference or disadvantage be created through the granting or withholding of consent. A political subdivision shall grant its consent under this division within thirty days after the date a utility service provider or cable operator applies for consent for the use of a public way.
Sec. 4939.03.  (A) A political subdivision of the state shall not levy a tax, fee, or charge or require any nonmonetary compensation or free service for the right or privilege of using or occupying a public way for purposes of delivering natural gas, electric, telecommunications, or cable television service.
(B) A political subdivision of this state may charge a utility service provider or a cable operator a construction permit fee to the extent that such fee applies to all persons seeking a construction permit. The fee shall be limited to the recovery of the direct incremental costs incurred by the political subdivision in inspecting and reviewing any plans and specifications and in granting the associated permit.
(C)(B) A utility service provider or cable operator that places lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities in a public way shall restore the public way to its former state of usefulness. To the extent a utility service provider or cable operator does not comply with this division, a political subdivision may charge the utility service provider or cable operator the necessary costs to restore the public way to its former state of usefulness.
(D)(C) Nothing in this chapter shall be construed to prohibit a political subdivision from doing either of the following:
(1) Charging a cable operator a franchise fee in accordance with section 2 of the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C.A. 542,as 542, as amended;
(2) Allowing a credit, offset, or deduction against the payment of a construction permit fee for any franchise fee a cable operator pays to the political subdivision.
(E)(D) A utility service provider, including a reseller, that does not own, operate, maintain, install, or construct any facility in a public way and that does not otherwise disturb the public way shall not be required to pay a fee or to obtain a construction permit to access the public way.
(E) A utility service provider that passes through or charges customers all or any portion of a tax, fee, charge, or cost of nonmonetary compensation or free service levied by a political subdivision for the right or privilege of using or occupying a public way for the purpose of delivering service, or that passes through or charges any cost related to carrying out this division, shall so pass through or charge only those customers that receive the utility service provider's service within the geographical limits of that political subdivision, and no other customers. This limitation does not apply regarding a fee or cost charged the utility service provider pursuant to division (A) or (B) of this section.
Section 3. That all existing versions of sections 4939.01, 4939.02, and 4939.03 of the Revised Code are hereby repealed.
Section 4. That section 4939.04 of the Revised Code is hereby repealed.
Section 5. Sections 2, 3, and 4 of this act shall take effect ninety days after the effective date of this act.
Section 6. This act is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety. The reason for such necessity is to provide, at the earliest possible time, for the re-enactment of certain utility and cable right-of-way provisions, as enacted by Am. Sub. H.B. 283 of the 123rd General Assembly, to provide for their continuation as part of Ohio law. Therefore, this act shall go into immediate effect.
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